2017 P Cr (PLP)

ABDUL SAMI KHAN, J.

Through this criminal revision under sections 435, 439, Cr.P.C., Suleman and Mushtaq Ahmed petitioners have challenged the vires of judgment dated 22.05.2012 whereby criminal appeal filed by them before learned Additional Sessions Judge, Pattoki, against the judgment dated 21.04.2012 passed by learned trial court/Judicial Magistrate Section-30, Pattoki, was dismissed. The learned trial court/Judicial Magistrate Section-30 vide judgment dated 21.04.2012 convicted the petitioner Suleman under section 337-A(ii), P.P.C. and sentenced him to rigorous imprisonment for two years with a direction to pay Arsh as Rs.20,000/- to the injured Ashraf. The petitioner Mushtaq Ahmad was also convicted under section 337-F(v), P.P.C. and sentenced him to rigorous imprisonment for two years and Rs.20,000/- as Daman payable by the petitioner Mushtaq to Muhammad Ashraf injured. The petitioners were also given benefit of section 382-B, Cr.P.C. While deciding appeal, the learned first appellate court maintained and upheld the decision of trial court. The petitioners Suleman and Mushtaq Ahmad have challenged their conviction and sentence through the instant criminal revision, whereas Muhammad Aslam complainant has filed Criminal Revision bearing No.733 of 2012 for the enhancement of sentence awarded by the learned trial court to the petitioners.

2. Heard and the record as well as grounds mentioned in the criminal revision have been perused. Perusal of the record shows that the petitioners has been nominated in case FIR No.299/2004 dated 16.05.2004, under sections 337-F(v), 337-A(i), 337-A(ii), 337-L(2), 354, 342, 148, 149, P.P.C., Police Station Sadar Phoolnaghar, with the allegations that the petitioner Mushtaq gave a Butt blow of gun on the arm of injured Muhammad Ashraf which resulted into a fracture whereas the petitioner Suleman gave a Dang blow on the head of injured Muhammad Ashraf. The FIR was got registered by Muhammad Aslam complainant, who entered appearance in the witness box before the learned trial court as PW-1 and supported the story of the incident. The deposition made by Muhammad Aslam complainant (PW-1) before the learned trial court got full support from the statements of Muhammad Ashraf injured (PW-2), Muhammad Ilyas (PW-3) eye-witness and Azizan Bibi injured (PW-4). Muhammad Aslam complainant (PW.1), Muhammad Ashraf injured (PW-2), Muhammad Ilyas eye-witness (PW-3) and Azizan Bibi injured (PW-4) are consistent on material points and have confidently faced the test of cross-examination and there is nothing on record to rebut the trustworthy and confidence inspiring evidence of these witnesses. Conversely, the defence failed to bring on record any material on the basis of which it could be considered that the petitioners were involved in the instant case in furtherance of any ulterior motive, illwill, and malice of previous enmity of the complainant/injured with them. The statements of PWs including the injured victim find further support from the medical evidence. The Doctor has appeared as PW.8 and has supported the prosecution version regarding the locale of injuries as well as weapon used in the occurrence. The MLC of the victim is duly exhibited in the evidence of doctor.

3. For what has been discussed above, I have come to the definite conclusion that the prosecution has successfully proved its case against both the petitioners for the reasons discussed above, this petition is dismissed, however, I have noted that imprisonment of two years imposed upon both the petitioners is not sustainable as the provision of section 337-N(2), P.P.C. are not taken into consideration by both the learned courts below. For ready reference section 337-N(2), P.P.C. is reproduced here:- 337-N. Cases in which qisas for hurt shall not be enforced: (1) ....... (2) Notwithstanding anything contained in this Chapter, in all cases of hurt, the Court may, having regard to the kind of hurt caused by him, in addition to payment of arsh, award ta'zir to an offender who is a previous convict, habitual or hardened, desperate or dangerous criminal [or the offence has been committed by him in the name or on the pretext of honour] Provided that the ta'zir shall not be less than one-third of the maximum imprisonment provided for the hurt caused if the offender is a previous convict, habitual, hardened, desperate or dangerous criminal or if the offence has been committed by him in the name or on the pretext of honour. The above mentioned quoted provision of law clearly shows that the conviction of imprisonment can only be awarded to the accused in such like cases if they are previous convict, habitual, hardened, desperate and dangerous criminal or they have committed the occurrence on the pretext of honour. All these facts are missing in this case and the prosecution has failed to prove that the petitioners are previous convict, habitual, hardened, desperate or dangerous criminal and they have committed the occurrence on the pretext of honour, hence, the imprisonment of two years imposed upon both the petitioners is not sustainable and the same is set aside. Now I shall decide the quantum of Daman. It has been observed by this Court that due to the injury attributed to the petitioner Suleman upon the victim the bone is not exposed, hence, section 337-A(ii), P.P.C. is not attracted in this case rather section 337-A(i), P.P.C. is attracted. For ready reference sections 337-A(i), P.P.C. and 337-A(ii), P.P.C. are reproduced hereunder:- (i) without exposing bone of the victim; is said to cause shajjah-i-khafifah; (ii) by exposing any bone 'of the victim without causing fracture, is said to cause shajjah-i-mudihah; Hence, the amount of Daman from Rs.20000/- imposed upon petitioner Suleman is reduced to Rs.10000/-. The amount of Daman imposed upon petitioner Mushtaq Ahmad is in accordance with law, hence, need no interference. With these observations, this petition is disposed of. Both the petitioners Suleman and Mushtaq Ahmad have handed over the amount of Daman i.e. Rs.10000/- + Rs.20000/- total Rs.30000/- to the injured victim Muhammad Ashraf who has received the same within the view of this Court, therefore, their sureties are discharged from the liability of surety bonds. Consequently Criminal Revision No.733 of 2012 filed by the compjainant for the enhancement of conviction and sentence of the pctitioners is also hereby dismissed. WA/S-30/L Order accordingly.